[Federal Register: May 22, 2003 (Volume 68, Number 99)]
[Rules and Regulations]
[Page 28095-28096]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22my03-24]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 8 and 42
[FAC 2001-14; FAR Case 2001-035; Item VI]
RIN 9000-AJ45
Federal Acquisition Regulation; Past Performance Evaluation of
Federal Prison Industries Contracts
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to require evaluation
of Federal Prison Industries (FPI) contract performance.
DATES: Effective Date: June 23, 2003.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC, 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Laura Smith, Procurement Analyst, at (202) 208-
7279. Please cite FAC 2001-14, FAR case 2001-035.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends FAR Subparts 8.6 and 42.15 to require
agencies to evaluate Federal Prison Industries (FPI) contract
performance. This change will permit Federal customers to rate FPI
performance, compare FPI to private sector providers, and give FPI
important feedback on previously awarded contracts. It is expected that
this change will give FPI the same opportunity that we give private
sector providers to improve their customer satisfaction, in general,
and their performance on delivery, price, and quality, specifically.
While the change does not negate the requirements of FAR 8.602 or
8.605, it will allow the information to be used to support a clearance
request per FAR 8.605.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 67 FR 55680, August 29, 2002. Ten respondents submitted
public comments. The Councils considered the
[[Page 28096]]
public comments before agreeing to convert the proposed rule to a final
rule with minor changes. A summary of the comments is provided below:
Comment: To avoid potential misinterpretation, the rule should more
clearly call attention to the mandatory source requirement for purchase
of FPI products and more clearly point out that a negative past
performance evaluation may be used as a basis for a waiver request.
Response: We agree. The intent of the rule is to ensure contracting
officers understand that the waiver process is still in effect and that
performance evaluations may be used to support future award decisions.
Therefore, the final rule amends FAR 8.607 and 42.1503(b) to more
clearly articulate that the waiver requirement, referred to at FAR
8.605 as a clearance, still applies and that a negative performance
evaluation can be used to support clearance requests.
Comment: There is no basis for an assessment of FPI's past
performance. FPI's past performance is irrelevant to whether an agency
is required to obtain goods from FPI because of its mandatory source
status. Therefore, the collection of data is a patent waste of
Government resources since it cannot be used for source selection
purposes.
Response: We believe that there is benefit to assessing FPI's
performance. The May 2000 Office of Federal Procurement Policy (OFPP)
guide ``Best Practices for Collecting and Using Current and Past
Performance Information'' states that the active dialog that results
from assessing a contractor's current performance results in better
performance on the instant contract, and that such assessments are a
basic best practice for good contract administration. As previously
stated, this information can also be used to support FPI clearance
requests.
Comment: What is the relationship between this rule and Section 811
of the National Defense Authorization Act of FY 2002? Section 811 does
not apply to agencies outside of DoD.
Response: This rule has no relationship to Section 811 of the FY
2002 National Defense Authorization Act. The genesis of this case was a
memorandum from FPI requesting past performance evaluations on their
contracts.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because extending the
collection of past performance data to include FPI contracts can be
accomplished within our normal means of performing business and further
serves to promote competition among offerors.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the approval of the Office of Management and Budget under 44 U.S.C.
3501, et seq.
List of Subjects in 48 CFR Parts 8 and 42
Government procurement.
Dated: May 13, 2003.
Laura G. Smith,
Director, Acquisition Policy Division.
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Therefore, DoD, GSA, and NASA amend 48 CFR parts 8 and 42 as set forth
below:
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1. The authority citation for 48 CFR parts 8 and 42 is revised to read
as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
0
2. Add section 8.607 to read as follows:
8.607 Evaluating FPI performance.
Agencies shall evaluate FPI contract performance in accordance with
subpart 42.15. Performance evaluations do not negate the requirements
of 8.602 and 8.605, but they may be used to support a clearance request
in accordance with 8.605.
PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES
42.1502 [Amended]
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3. Amend section 42.1502 in the first sentence of paragraph (b) by
removing ``subparts 8.6 and'' and adding ``subpart'' in its place.
0
4. Amend section 42.1503 in paragraph (b) by adding a new seventh
sentence to read as follows:
42.1503 Procedures.
* * * * *
(b) * * * Evaluation of Federal Prison Industries (FPI) performance
may be used to support a clearance request (see 8.605) when FPI is a
mandatory source in accordance with subpart 8.6. * * *
* * * * *
[FR Doc. 03-12306 Filed 5-21-03; 8:45 am]